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Firms scramble in face of spam law

Have little time left to tweak marketing

SAN FRANCISCO -- Businesses that send marketing e-mail have huddled with their lawyers in recent weeks, trying to figure out how to comply with the nation's first antispam law when it takes effect Thursday.

 

They face an unusually tight deadline. President Bush signed the bill, known as the Can Spam Act of 2003, on Dec. 16, leaving companies with little time to study the law and tweak their e-mail marketing plans.

"This is really a short and even harsh time frame," said Charles H. Kennedy, a Washington lawyer with Morrison & Foerster.

Congress rushed the law onto the books earlier this month and made it effective Jan. 1 -- the same day a much tougher California law, which left businesses worried that their e-mail marketing would be banned, was scheduled to take effect.

Federal lawmakers said they wanted to avoid a messy patchwork of state laws, and to give regulators more ammunition in their efforts to shut down the spammers who flood the Internet with an estimated 13 billion unsolicited commercial e-mail messages a day.

In their sights: peddlers of get-rich-quick schemes, pornography, and sexual cure-alls. But Can Spam could affect any business that uses email to reach potential customers.

The law prohibits commercial e-mail senders from forging their name or return e-mail address, from hacking into someone's computer and using it to send spam, and from using Internet-crawling software programs to harvest e-mail addresses for spamming.

More relevant to legitimate businesses, the law requires that senders identify commercial e-mail as an advertisement, include their postal address in the message, and provide a working link that allows the recipient to unsubscribe from the sender's mailing list. The legislation also recommends a Federal Trade Commission Do-Not-Spam registry, similar to telemarketing do-not-call registries.

For many legitimate businesses the changes will be minor.

FleetBoston Financial Corp., for example, has scrutinized the law and decided that it has little to fear. Fleet doesn't use duplicitous subject lines, pitch nonexistent products, hide behind fake e-mail addresses, or ignore requests to remove customers from mailing lists, said Sol Nasisi, a senior electronic-marketing manager. Fleet needs simply to add its postal address to commercial e-mail and to specify somewhere in the message that the e-mail is commercial in nature in order to comply, he said.

"We've always taken a pretty conservative approach to e-mail," he said. "We didn't want to overload our customers and be lumped in with all the spammers out there."

Unlike the California law, which banned businesses from sending e-mail to people who had not requested it, the federal law makes sending unsolicited commercial e-mail legal as long as the businesses follow certain guidelines and honor requests to unsubscribe.

Some companies are taking no chances, though. Stock analysts with CIBC World Markets, the Canadian investment bank, recently sent their US clients a preemptive e-mail: "In order to comply with the CAN-SPAM Act of 2003, we request your consent to send or to continue to send you e-mails relating to products and services available through CIBC World Markets."

It's not just CIBC that's worried about complying. Kennedy, the Morrison & Foerster lawyer, recently held a conference call to discuss the new law, and 230 clients listened in.

One loophole Kennedy fretted over: The law does not define spam only as e-mail sent in bulk, but as any whose primary purpose is commercial. Following the strict letter of the law would create some unusual situations, he said.

Say that a software salesman hears that a chief information officer is thinking about upgrading her database technology. If he sends her e-mail introducing himself and pitching his product, that message must include a disclaimer that the message is commercial and a link that allows her to unsubscribe from future mailings.

Kennedy and Mark E. Schreiber, a Boston lawyer with Palmer & Dodge, said federal regulators would almost certainly reserve their lawsuits for the most blatant spammers, not individual software salesmen. Congress has asked the FTC to review the law for loopholes and to refine its wording. But in the meantime the imprecise wording makes the antispam law another regulation that businesses must worry about.

"There are a whole host of legitimate business purposes that may inadvertently be swept up in this," Schreiber said.

Chris Gaither can be reached at gaither@globe.com.

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